Houston & Tex. Cent. R.R. Co. v. Knapp

• Decision Date: 01 January 1879
• Citation: 51 Tex. 592
• Parties: THE HOUSTON AND TEXAS CENTRAL RAILROAD CO. v. LOUISA KNAPP.
• Court: Texas Supreme Court

51 Tex. 592

THE HOUSTON AND TEXAS CENTRAL RAILROAD CO.

v.LOUISA KNAPP.

Supreme Court of Texas.

1879.

APPEAL from Robertson. Tried below before the Hon. J. B. Rector.

Louisa Knapp sued the Houston and Texas Central Railroad Company, April 23, 1873, to recover damages for destruction of crops and injury to land caused by the negligent construction of appellant's railroad across Mud Creek, in Robertson county, whereby the waters of said creek were thrown back upon appellee's land.

She charged that on the 24th day of April, 1871, plaintiff owned in fee the following described land, * * * containing one hundred and thirty-two and one-fourth acres; that on the 24th day of April, 1871, defendant so carelessly and negligently constructed its said road, that it thereby obstructed and threw back the water of Mud Creek on plaintiff's said land and destroyed the growing crop thereon, and the personal and movable property to the amount and of the value of $500; that on the 2d day of May, 1871, the defendant so negligently and carelessly constructed its said road that it thereby obstructed the water in the channel of Mud Creek, * * * and threw back the water on plaintiff's said land to her damage and injury, to wit, in the sum of $100; that on the 3d day of April, 1872, defendant so negligently constructed its said road that it obstructed the channel of Mud Creek, * * * and threw the water back upon plaintiff's said land and destroyed growing crops thereon to the amount of $500; that by reason of the negligent use, &c., on the 22d day of April, 1872, defendant obstructed and threw back the waters of Mud Creek upon plaintiff's said land and thereby damaged the same in the sum of $500.

Defendant demurred generally and denied generally.

The evidence of witnesses introduced by plaintiff was, in effect, that plaintiff was the widow of John Knapp, who owned and lived on the land since 1860 and died on it in 1869; that she administered on the estate of her deceased husband, and, as the head of the surviving family, occupied the land described in the petition at the time of the alleged injury, having so resided on it since the death of her husband; that in partitioning the property of the estate of her husband, in June, 1872, this land was set apart to her; that she owned the crops on the land in 1871 and 1872; that plaintiff's land was overflowed in the spring of 1871, and that the crop on from fifty to sixty acres was destroyed and had to be replanted; that the corn was from knee to waist high when the second overflow came; that the land did not overflow as much before the railroad was built, nor did the water stand on it as long; that the embankment is from twenty to twenty-five feet high, and the water rose in the spring of 1871 from ten to twelve feet high on the embankment; the water on Mrs. Knapp's place was affected by the obstruction of the embankment; the water stands longer and gets higher; in May, when the second overflow came, it was too late to replant; in May, 1871, there was from twenty to twenty-five acres entirely lost; fifty acres did not overflow before the railroad was built; it would take fifty days to plow fifty acres and prepare it for a crop; it would require two horses, and the work of a man and two horses would be worth $5 per day; the land subject to overflow is worth $10 per acre; if it did not overflow it would be worth $20; that it would hurt cotton very seriously for water to stand on it twenty-four hours; it would not hurt corn so much; cost nearly as much to replant cotton which had been overflowed as to plant it at first; that “before the embankment was built the overflow would run off in from three to six hours; since then the overflow lasts from twenty-four to thirty-six hours; an overflow would kill cotton and corn in twenty-four to thirty-six hours”; that “there was an overflow in 1872; the water stood at the railroad two or three days, and the crop had to be replanted.”

Charles Knapp, a witness for plaintiff, testified that the land of plaintiff claimed to have been damaged by the overflow caused by the construction of defendant's railroad would be worth $20 an acre if it did not overflow, and was now worth $10 an acre. This, defendant's counsel moved to strike out, and excepted to the action of the court overruling the motion.

F. M. Ross, a witness for defendant, testified, among other things, as follows: “I cannot see that there would be any difference in the overflow of the land before or since the construction of the railroad; it overflowed always in a general rain, and it does so yet.” Afterwards he was asked by defendant's counsel “How much, if any, has the land [referring to plaintiff's land claimed to have been damaged by defendant] been impaired by the construction of the railroad?” The court sustained objections to this question, but no bill of exceptions in the record reveals the ground of objection.

There seems to have been little evidence contradicting the testimony of plaintiff's witnesses, to the effect that the railroad embankment obstructed the flow of the water, and dammed it up for a sufficient length of time to destroy the crops; whereas before, though the land overflowed, the water, pursuing its natural channels, ran off before the crops were injured. The testimony was quite lengthy--too much so for insertion in full, though we may say the fact was extensively sworn to by defendant's witnesses that the bottom land of plaintiff had always overflowed. The only difficulty not explained was the protracted damming up of the water and the depth of the overflow. In regard to this, Francis, the civil engineer who superintended the construction of the culvert, differed with other witnesses, and testified that in his opinion the embankment did not retard the flow of the water.

The court instructed the jury as follows:

“In this case the jury are instructed--

First. That if from the testimony they believe that on the 24th day of April, 1871, the plaintiff was in possession of the land described in her petition, as surviving widow of John Knapp, holding the same as her homestead, and that she continued to reside on said place as her homestead until it was set apart to her as her separate property on June 29, 1872, and that while plaintiff owned and possessed said land it was overflowed on the 24th day of April, 1871, and on the 2d of May, 1871, and on the 3d day of April, 1872, and on the 27th day of April, 1872, by the defendant having so negligently and carelessly constructed its road that it obstructed the waters of Mud Creek and threw back the waters thereof on plaintiff's land on one or more of said occasions, then you will find for plaintiff the damages, if any she may have suffered on said occasions, by reason of the overflowing of her land by said defendant, said damages not to exceed $500 on the 24th of April, 1871, and to be limited on that occasion to the destruction of plaintiff's growing crops and her personal and movable property; said damages not to exceed on the 2d day of May, 1871, $100; said damages not to exceed on the 3d day of April, 1872, $500, and be limited to the crops growing on said land; said damages not to exceed on April 27, 1872, the sum of $500.

Second. If the jury believe from the evidence that plaintiff's land was not overflowed by the construction of defendant's road across Mud Creek, or if it was, that said road contributed any to the overflowing of plaintiff's land, but did not on any of the occasions charged in plaintiff's petition prolong the time which the waters stood on plaintiff's land to her injury, then you will find for the defendant.

Third. Should you find from the evidence that plaintiff's land was subject to overflow by the natural rise of the waters of Mud Creek, and that by the construction of the defendant's road across said creek the height and duration of the waters on plaintiff's lands were increased in time of flood, and that they were increased on any of the occasions referred to in plaintiff's petition to the damage of plaintiff, then you will find for plaintiff, and the measure of damages will be the difference...